The Ontario Court of Appeal's June 12, 2015 decision in R. v. Dufour revealed division on the question of when to re-incarcerate an offender after a successful Crown appeal against sentence. This issue has been frequently discussed by appellate courts across Canada in recent years (see, e.g., R. v. Smickle, discussed here). Given the dissent in Dufour, it is at least possible that the Supreme Court of Canada will address this issue in the near future.
Pending clarification from the Supreme Court of Canada on this issue, it appears as though the following passage from the Court of Appeal's majority judgment is the best statement of the law in this respect:
 ... on a successful Crown appeal against sentence, where the seriousness of the offence does not require that an offender serve the sentence that should have been imposed, the appellate court can consider the length of the sentence to be served and the offender's post-sentence rehabilitative efforts in determining whether to stay the sentence. However, over-emphasis of post-sentencing rehabilitation has the potential to distort the sentencing process. Staying appropriate sentences may also introduce unwarranted disparities between similarly situated offenders where one is released from custody pending appeal and another is not.
After the accused's guilty plea, the trial judge sentenced her to one year in prison, less 344 days of pre-sentence custody, and an additional twelve months conditional sentence. It was conceded on appeal that this was an illegal sentence as a conditional sentence is not available for an offence, such as the accused's, which carried a maximum sentence of life imprisonment. As such, the trial judge's sentence was owed "no deference" on appeal.
Numerous mitigating factors surrounded the offender in this case. She has led a truly tragic life. Child welfare officers have been in her life since she was twelve. She suffers from numerous mental and physical illnesses, including drug addiction, and has four children between the ages of 11 and 19, whom she largely supported through stripping, prostitution, and selling drugs. Moreover, she pled guilty to the offence at issue in this case.
Her offence, however, was extremely serious – she had broken into a home, stole a loaded handgun, and sold the handgun to a known drug dealer in exchange for cocaine and cash.
Despite the mitigating factors, the Court of Appeal unanimously agreed with the Crown that three years would have been an appropriate global sentence. What divided the Court of Appeal was whether that sentence should be stayed given that the offender had already served the originally imposed sentence.
Justice Pardu's Majority Reasons (Justice Hourigan Concurring)
For the majority, Justice Pardu comprehensively reviewed precedents from across Canada on the question of when to stay the imposition of a sentence in the face of a successful Crown appeal. She noted the following factors are relevant:
- If a lengthy appellate process has been necessary to sort out jurisprudential questions (paras. 12, 14);
- The offender's progress towards rehabilitation, which re-incarceration could interrupt (para. 15);
- The length of sentence that "should still be served" (para. 21);
- If "no good purpose" would be served by re-incarceration (para. 19);
- Failure of the Crown to object to the illegal/improper sentence in a timely fashion (para. 22); and
- The time elapsed since the offender has gained his or her freedom (para. 24).
The case law suggested that hardship upon the offender is not, in and of itself, grounds to stay the imposition of a sentence, without the presence of the foregoing specific factors. The fact is that incarceration is a hardship for any offender (para. 17). Moreover, these considerations are very much tied to the decision to re-incarcerate, and do not seem to apply to increasing fines or the length of a conditional sentence (para. 20).
The following factors, however, militate against staying imposition of a sentence in the face of a successful Crown appeal:
- If the objectives of denunciation and deterrence cannot be met without further incarceration (para. 13);
- The offence is extremely serious and failure to re-incarcerate would create unprincipled disparity between similarly positioned offenders (paras. 26-29).
In this case, Justice Pardu concluded:
 ... there is no substantial evidence of rehabilitative efforts made after the respondent was released from custody. In fact, the respondent breached the conditional sentence almost immediately afterwards and spent 105 days in custody on that breach. The remaining sentence to be served is significant. In light of the seriousness of the offences, denunciation and deterrence require that the respondent serve an appropriate sentence.
Justice Feldman's Dissenting Reasons
In her dissent, Justice Feldman agreed that it was not open to the trial judge to impose the sentence that he did but she disagreed that re-incarceration of the accused was necessary to adequately convey the sentencing principles of denunciation and deterrence. In her view, precedents where the Ontario Court of Appeal had ordered an accused re-incarcerated were serious crimes of violence and/or sexual crimes against children. In these cases, the facts of the offence "cried out for societal condemnation" (para. 35). In this case, Justice Feldman viewed the motivating factors behind the offender's criminality to be poverty and addiction, which can be mitigating factors even for serious offences. In sum, she concluded:
 On the issue of deterrence, while offences involving firearms are always serious, in this case the respondent did not possess the gun as a tool of a criminal trade. Consistent with her desperate circumstances, she stole the gun in order to sell it. She pled guilty, was remorseful, and did not have a recent criminal record. She has already served a substantial amount of time in custody. The breach of her conditional sentence was living at an unauthorized address for 2 to 4 days. While unacceptable and unlawful, the breach did not involve conduct that was criminal in itself. The respondent has been sentenced accordingly for that breach, and on the record before the court, she has abided by the conditions of her sentence since then.
 The totality of all the circumstances I have described are among the types of circumstances that have traditionally led this court to stay any additional sentence that may be imposed on a Crown appeal. To re-incarcerate the respondent at this point for a number of months will serve little further deterrent purpose, but may well cause a significant set-back in her prospects for rehabilitation.
 On the issue of denunciation, appellate courts have recognized that a pronouncement of the appropriate sentence will be effective in most cases without the need for re-incarceration, except in the types of exceptional cases referred to above involving extreme violence or sexual abuse where the initial sentence was minimal. [...]
 In sum, I am of the view that the legal error committed by the sentencing judge can be corrected without disrupting the respondent's remaining prospects for rehabilitation. Given the respondent's background, the circumstances of the offence, and the fact that she has served a significant portion of her sentence of incarceration, this is not the type of case that requires re-incarceration in order to uphold the objectives of the sentencing regime.
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